Are Reduced Hours Necessary
HCA
72 Posts
Last week there was a question about an employee not being able to work overtime and whether it was a required accomodation under ADA. ("ADA Disability?" 6/17/04). I have a similar situation.
Our employees work rotating swing shifts,and work seven days on and two off. We had an employee say that due to medical problems he couldn't work night shifts. We moved him to days. Then he said, he can't work seven days, only four or five days in row. We required a doctor's note. He just presented the doctor's note saying "several medical problems", "seven days, then off two...is going to aggravate some of his underlying medical problems" "his health is adequate to ..work four or five days in a row but seven does seem excessive".
First: There is absolutely no problem with accomodating this guy, moving him to days, and only making him work five days in a row. Also, there are no problems with him performing the essential functions. He can do whatever we need him to, just not rotating at night, and just not seven days in a row. The job doesn't require that he do either of those because we have others who can.
However, I'd like some other opinions on "is this ADA?" Now other employees are going to get upset because he is getting this special treatment. We can say "ADA", but I hate to if it really isn't. It does appear that the medical problems "substantially limit major life activity" because he needs the "maintenance of regular sleep schedule". His problems are "fatigue" and "stomach problems".
I'd love some input. We rarely ever have ADA issue. Part of me knows he's working us, but part of me says it doesn't matter because he has the doctor willing to sign the notes!
Our employees work rotating swing shifts,and work seven days on and two off. We had an employee say that due to medical problems he couldn't work night shifts. We moved him to days. Then he said, he can't work seven days, only four or five days in row. We required a doctor's note. He just presented the doctor's note saying "several medical problems", "seven days, then off two...is going to aggravate some of his underlying medical problems" "his health is adequate to ..work four or five days in a row but seven does seem excessive".
First: There is absolutely no problem with accomodating this guy, moving him to days, and only making him work five days in a row. Also, there are no problems with him performing the essential functions. He can do whatever we need him to, just not rotating at night, and just not seven days in a row. The job doesn't require that he do either of those because we have others who can.
However, I'd like some other opinions on "is this ADA?" Now other employees are going to get upset because he is getting this special treatment. We can say "ADA", but I hate to if it really isn't. It does appear that the medical problems "substantially limit major life activity" because he needs the "maintenance of regular sleep schedule". His problems are "fatigue" and "stomach problems".
I'd love some input. We rarely ever have ADA issue. Part of me knows he's working us, but part of me says it doesn't matter because he has the doctor willing to sign the notes!
Comments
You say that you can work within these restrictions and that is your choice to do so. One caution would be, however, that once word gets out that you are allowing this you should plan on having numerous other employees doing the same thing. At some point you are going to need to make a decision regarding your ability to allow this kind of work restriction.
It appears that this person has been able to get his physician to grant him his evenings off, as well as limit him to the amount of hours he only wants to work; something that is not difficult to do these days.
ADA MAYBE applicable.
You did identify yourself that the employee's sleep is impaired. But as you know there is more to it than whether a major life activity is impaired or not.
The issue for this situation is to what degree in comparison to the average person is the sleep or possibly other major life activities impaired?
Your post doesn't provide enough information.
I strongly suggest you go back to the interactive process and get more information about the medical conditions and what degree of impairments exist to major life activities -- if the employee is taking any medicaiton or other remedial measures to mitigate or eliminate the impairment. Find out if the impairments are permanent or long term (a year or more is generall considered lon term) or if they are only temporary (short term) conditions.
Talk to the employee and then decide whether it could reasonably be ADA and then follow up with the treating practitioner with specific questions and documentation along the same lines as above and how and what accommodations would he recommend that would allow the employee to meet the essential demands of the job.
At least document your complete conversation with th employee. If you decide based upon the informaton that you get from the employee that it does not reasonably appear to be an ADA applicable situation, then of course, deal with the fundamentl work time issue on a management basis.
If you're in doubt, then contact the doctor for the documentation and then decide.
EEOC, if they come aknocking (upon getting an ADA complaint, will want to see the process you used and what you considered in denying the employee reasonable acccommodation.
EEOC's position is that just as important in making a good decision is having a meaningful process and facts to help the employer decide. Some time ago, I read EEOC material that reflected its understanding that the employer may not always make the right decision even if it uses a good interactive process and documentation and deicded in good faith. That, believe it or not, was not as big a problem for EEOC than if the employer wasn't acting in good faith to come to an ADA determination even if the determination turned out to be wrong.